First Detainee Transferred From Guantanamo Under Trump

Earlier today, the Pentagon announced that Ahmed al-Darbi, a Guantanamo Bay detainee who pleaded guilty and cooperated with prosecutors, has been repatriated to his native Saudi Arabia pursuant to the terms of his settlement agreement.

A former member of al-Qaeda, al-Darbi had been detained at Guantanamo since 2002. In 2014, he agreed to plead guilty to charges relating to a 2002 attack on a French oil tanker, under the terms of a plea agreement that provided he would be transferred to Saudi Arabia after four more years in U.S. custody. In 2017, he was sentenced to thirteen years of confinement. Pursuant to his plea agreement, he provided testimony against several other detainees prior to his scheduled transfer date in February 2018. Prosecutors in one of those matters accused the defense of orchestrating a series of resignations in part to weaken al-Darbi’s testimony.

The full Defense Department statement on Darbi’s transfer reads as follows:

The Department of Defense announced today the transfer of Ahmed Mohammed Ahmed Haza al Darbi from the detention facility at Guantanamo Bay to the government of the Kingdom of Saudi Arabia.

In a February 2014 plea, al Darbi pled guilty at a military commission. Now, having complied with the terms of that agreement, al Darbi will serve out the balance of his 13-year sentence in Saudi Arabia. He has waived his right to appeal.

In accordance with statutory requirements, the secretary of defense informed Congress of the United States' intent to transfer this individual and of the secretary's determination that this transfer met the statutory standard. The last announcement of a Guantanamo detainee transfer took place Jan. 19, 2017.

The United States coordinated with the government of the Kingdom of Saudi Arabia to ensure the transfer took place in accordance with established standards for security and humane treatment.

Today, 40 detainees remain at Guantanamo Bay.

Al-Darbi’s transfer was originally scheduled for Feb. 20, but U.S. officials delayed it on the grounds that they were “await[ing] assurances from the Saudi Arabian government . . . .” The nature of these “assurances” still remains unclear. Notably, the Justice Department filed a court document on April 17 indicating that an unnamed country widely believed to be Saudi Arabia had agreed to accept the transfer of John Doe—a suspected Islamic State fighter and dual U.S.-Saudi national held by U.S. forces in Iraq—and provided adequate assurances regarding his treatment. In hindsight, the United States’ ability to secure these assurances for Doe may have been a positive sign that it would be able to do so for al-Darbi.

Some observers speculated that the delay in al-Darbi’s repatriation was a sign that the Trump administration was unwilling to transfer detainees out of Guantanamo Bay, consistent with certain public statements by President Trump. Several detainees presented a similar argument as part of a new habeas petition, pointing to Trump’s public opposition to detainee transfers and promise to “load [Guantanamo] up with some bad dudes” to make the case that their ongoing detention is arbitrary..

Al-Darbi’s transfer seems likely to weaken these arguments, though the fact that his transfer took place pursuant to a pre-existing plea agreement may make his case distinguishable. Al-Darbi himself vocally blamed Saudi Arabia, not the Trump administration, for the delay.

Notably, al-Darbi’s transfer takes place on the same day that Secretary of Defense James Mattis provided the White House with recommendations for changes in U.S. detention policy, pursuant to the president’s Jan. 30 executive order. While the recommendations have not been publicly released, the Pentagon announced that they will provide “guidance on nominating detainees for transfer to Guantanamo detention should that person present a continuing, significant threat to the security of the United States.” According to the Miami Herald’s Carol Rosenberg, a Defense Department spokeswoman stated that the timing of the transfer relative to Mattis’s announcement is “completely coincidental.”

Scott R. Anderson is a David M. Rubenstein fellow in Governance Studies at the Brookings Institution. He previously served as an Attorney-Adviser in the Office of the Legal Adviser at the U.S. Department of State and as the legal advisor for the U.S. Embassy in Baghdad, Iraq.